Definition of “anonymization” of data in Polish IT law and change of digitization law in the public sector and implementation of Directive 2019/1024
publication date: January 04, 2023
The Polish Act on open data and re-use of public sector information of August 11, 2021 defines the principles of data openness, the rules and procedure for sharing and transferring public sector information for re-use and entities that provide or transfer this information, as provided for in Art. 1 of this Act. Notwithstanding the fact that this act implements Directive (EU) 2019/1024 of the European Parliament and of the Council of June 20, 2019 on open data and re-use of public sector information into the Polish legal order (Journal of Laws EU. L. of 2019, No. 172, item 56), these provisions were introduced into the Polish legal order to increase the amount of public data that can be used, for example, to conduct analyses, research or for the purposes of artificial intelligence solutions, including for business and industry or crisis modelling.
The act replaced the previous act on re-use of public sector information of 25 February 2016. The scope of the subject matter of the act includes above all the rules of free sharing of information from the public sector, with specified exceptions as well as the mode and manners of transferring such information for re-use, modified rules for sharing information for state museums, self-government museums, public libraries, research libraries, pedagogical libraries and archives, rules and procedure for sharing research data produced or collected as part of scientific activities financed from public funds and re-use of public sector information, in particular having the characteristics of a work or the subject of related rights.
The Act also stipulates the obligation to develop the Policy of open access to research data financed from public funds by the Polish minister responsible for higher education and science, and the mode of sharing dynamic data (public sector information recorded in electronic form, subject to frequent updates or updates in real time, in respect of their volatility or fast obsolescence, in particular data generated by sensors) and high-value data (public sector information, the re-use of which is associated with significant benefits for society, the environment and the economy, in particular due to its usefulness to create products, services and applications based on the use of this data). The Act introduces an obligation to develop a Data Opening Program by the minister competent for computerization in order to increase the quantity and improve the quality of public sector information and private data as well as metadata describing their structure.
The Act describes the function of the representative for data openness – obligatory office in the ministry administration, in the Chancellery of the Prime Minister and in the Central Statistical Office and optionally in other entities – responsible for implementing activities aimed at the increase in the quantity and improvement of the quality of public sector information made available in the data portal for re-use, and the process of sharing public sector information of particular importance for the development of innovation in the country or for the development of the information society (this information will be made available in the data portal, i.e. by the minister responsible for computerization, a publicly available ICT system) and private data of particular importance for the development of innovation in the country or for the development of the information society.
Above all, the Act introduces into the legal order specialized terms and legal definitions that bindingly determine the meaning of a given concept for the purposes of this normative Act. Legal definitions which were used in the Act are such terms as:
– Anonymization, which is the process of changing public sector information into anonymous information that does not relate to an identified or identifiable natural persons, or the process of changing personal data into anonymous data in such a way that the identification of the data subject is not or no longer possible. The Act defines several necessary types of data, such as – research data, which is public sector information recorded in electronic form, other than scientific publications, which have been produced or collected as part of scientific activity within the meaning of Art. 4 of the Act of July 20, 2018 – Law on Higher Education and Science and are used as evidence in the research process or are used to verify the correctness of findings and research results. Dynamic data, which is also public sector information stored in electronic form, subject to frequent updates or updates in real time, due to their volatility or rapid obsolescence, in particular data generated by sensors. High-value data is public sector information, the re-use of which is associated with significant benefits for society, the environment and the economy, in particular due to its usefulness to create products, services and applications based on the use of this data. Private data is any content or its part, regardless of the method of recording, in particular in paper, electronic, sound, visual or audiovisual form, owned by an entity other than the obligated entity and generated by it, with the exception of personal data. Open format is a format file, which is independent from system and is shared without any restrictions that would hinder reuse, and a machine-readable format is a file format structured so that computer programs can identify, recognize and retrieve specific data and their internal structure.
Public sector information is any content or part thereof, regardless of the method of recording, in particular in paper, electronic, sound, visual or audiovisual form, held by the obligated entity. The programming interface of the application is a set of technical functions that enable the connection and mutual exchange of data or metadata between computer programs or ICT systems. Other legal terms that have been defined in the Act include terms such as – metadata, which is structured information describing, translating, locating and facilitating finding, using or managing other information, and open data, which means public sector information made available or transferred in electronic form, unconditionally or subject to conditions, referred to in Chapter 3 of this Act, complete, up-to-date, in the source version, in an open and non-proprietary machine-readable format, which are intended for free reuse under the same terms for each user, without the need to confirm the user’s identity. Reuse is defined in the Act as exploitation by users of information from public sector in whatever purpose, except for the exchange of public sector information between obliged entities solely for the purpose of performing public tasks. The last two definitions set out in the Act are a data portal – a publicly available ICT system run by the minister competent for computerization, used to share public sector information for re-use and private data for use, and a user who means a natural person, a legal person or organizational unit without legal personality that reuses public sector information or uses private data.
After long expectations, a new, changed draft of the act amending the act on copyright and related rights and some other acts was introduced into the Polish legal order. According to the proposal of the first draft of June 2022, in a situation where the buyer of the copyright property or licensee, who was granted exclusive license, would not start exploiting the work within 2 years from the date of transfer of economic copyrights or granting a license, the author could withdraw from the contract or terminate it. The proposed change was widely criticized during the public consultations. Many entities were of the opinion that a change in the commented provision and a proposal to replace the existing concept “make available” to “exploit” was not approved. The term “exploitation” is a broad concept, and the wording used by the legislator is quite general. It was finally accepted that the possibility of exercising the right of withdrawal or termination will be subject to lack of “making the work available” by rights holder or licensee. The use of data has an important role in legal everyday life and the prevalence of this process is increasing, which makes it necessary to legally secure certain areas of data protection that may be the source of data extraction.
The EU legislator draws attention to the possibility of commercial use of text and data mining and imposes an obligation on Member States to introduce exceptions or limitations for certain categories of situations. The Polish legislator has attempted to introduce a new article 263 to this act , using the term “text and data mining”, which aims to eliminate the problem of terminology in these legal terms. Current legal provision subject to legislative process reads as follows:
Art. 26 (3) 1. It is allowed to reproduce distributed works for the purpose of text and data mining, unless the authorized entity reserved otherwise. 2. The reservation referred to in par. 1, should be adequate to the method of sharing works. In the case of works made publicly available in such a way that everyone can access them at a place and time of their choice, the reservation is made in a machine-readable format within the meaning of the Act of August 11, 2021 on open data and re-use of sector information public (Journal of Laws, item 1641 and of 2022, item 1700), including metadata and terms of use of the website or service. 3. Works reproduced in accordance with sec. 1 may only be stored for text and data mining purposes, for as long as necessary for that purpose.
It follows from the content of the legislator’s justification to the above proposal for a statutory change that the above proposal of the provision is to explicate the problem of the possibility of using digital technologies to mine texts and data, which are of great importance not only for research organizations, but also for business entities that use the results of exploration in various spheres of everyday life and for various purposes, such as making complex business decisions, developing new business models, developing innovative applications and technologies. Thanks to the implementation of European regulations, copyright law in our country will respond to the challenges posed by progressing digitization and the so-called information society.
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20210001641/U/D20211641Lj.pdf
